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CC Ordinance No. 1875ORDINANCE NO. 1875 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 9.06 OF THE CUPERTINO MUNICIPAL CODE, CITY COUNCIL - REGULATION OF MASSAGE THE CITY COUNCIL OF THE CITY OF CUPERTINO ORDAINS that Chapter 9.06 of the Cupertino Municipal Code is amended to read as per the attached Exhibit A. This ordinance shall take effect and be in force thirty (30) days after its passage. INTRODUCED at a regular meeting of the City Council of the City of Cupertino on the 19th day of March, 2001, and ENACTED at a regular meeting of the City Council of the City of Cupertino on the 2n't day of April, 2001, by the following vote. VOTE MEMBERS OF THE CITY COUNCIl, AYES: Burnett, James, Lowenthal NOES: None ABSENT: Chang ABSTAIN: None ATTEST: APPROVED: Mayor, City of (Z~ertino Chapter 9.06 MASSAGE ESTABLISHMENTS AND SERVICES 9.06.010 Purpose of provisions. A. It is the purpose and intent of this chapter to provide for the orderly regulation of massage therapists and massage establishments as defmed in this chapter in the interest of public health, safety and welfare by providing certain minimum qualifications for the operators of massage establishments and massage therapists. This chapter is adopted based on the following findings: 1. That the City of Cupertino has recognized the field of massage therapy as a viable professional field; 2. That the City of Cupertino wants to recognize and respect professional massage therapy organizations and qualified professionals; 3. The City of Cupertino also finds that the rules and regulations as developed in this chapter strive for equality of all massage organizations and therapists while attempting to prevent serious objectionable characteristics which massage parlor establishments may have created in the past. B. It is intended that massage therapy is a profession of the healing arts and subject to all zoning ordinances and regulations as may be required for professional uses. A. It is also intended that massage uses not regulated or exempted by this chapter are considered massage parlors thus regulated by the provisions in Chapter 19.104 regulating adult-oriented commercial activities. (Ord. 1712 (part), 1995; Ord. 1606 § 1, 1992) 9.06.020 Definitions. For the purpose of this chapter, unless the context clearly requires a different meaning, the words are termed and phrased as set forth in this section and shall have the meaning given them in this section: A. "Corporate massage" means any massage of the neck, arms, shoulders and back area above the waist where the client is fully clothed and done without the use of supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice. B. "License" means a license to operate a massage establishment as required by this chapter. C. "Managing employee" means any employee of a massage establishment who has been designated by the holder of the massage establishment license to manage the business in his/her absence. The managing employee may perform massages at the business only if he/she obtains and maintains in effect a massage therapist permit. F,, D. "Massage" means any method of pressure on or friction against or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body with the hands, hot towels or with any mechanical or electrical apparatus or other appliances or devices with or without such supplementary aides as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations; or by baths, not limited to vapor, electric tub, mineral fomentation, or any other type of bath. ~ E. "Massage establishment" means any licensed establishment having a fixed place of business where any individual, firm, association, partnership, corporation, joint venture, or a combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on for consideration, massages or health treatments involvim, ........... ,4 ....~'"~*;"~ massage, including but not limited to any hot tub/sauna, relaxation, or tanning establishment in which massage services are made available to clients. ~,, F. "Massage therapist" means any person who has been granted a permit pursuant to this chapter and who administers massages, baths or health treatments involving massages or baths as the principal function to another person for any compensation whatsoever, and meeting the certain requirements established by this chapter. G. "Outcall massage service" means the engaging in or carrying on of massage for consideration at a location other than a licensed massage establishment. · ' - .......................... o ........ G, H. "Permit" means a permit to engage in activities of a massage therapist or a managing employee as required by this chapter. I& I. "Person" means any individual, firm, association, partnership, corporation, joint venture, or combination of individuals. I, J. "Recognized school of massage" means any school or institute of learning which: ~- ]. Requires a residence course of study of not fewer than one hundred hours within at least three months on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy, physiology, and hygiene, and at least seventy-five hours of demonstration and practice of massage, techniques, and which provides a diploma or certificate of graduation upon successful completion of such course o/study or course work recognized by national professional massage or body therapy organizations,-.~a~,..~ succ-'s-~-n-q ~-emT:etien ef_'uch ceos_-ef_~tudy er ~' ,. ..... lng, and 3. 2. Has been approved pursuant to California Bducation Code Section 94311 or, if the school is not located in California, has complied with standards commensurate with those required in said Section 94311; 4. 3. Any school or institution of learning offering or allowing correspondence course credit not requiring actual attendance at class, or courses of massage therapy not approved by the California Department of Education shall not be deemed a recognized school of massage. ~, K. "Residential massage" means engaging in or canting on of massage at a residence where the client either owns or rents the residence. 9.06.030 Exemptions. A. A massage establishment license shall not be required for the following persons while engaging in the performance of the duties of their respective professions: 1. Physicians, surgeons, chiropractors or osteopaths who are duly licensed to practice their respective professions in the State of California while performing activities encompassed by such professional licenses; 2. Massage therapists .......... o,,,~ ....... ,, ...... ,~ .... ~;~* .......... ~'°; .... while performing massage in the offices of a licensed physician, surgeon, chiropractor or osteopath and while under the direct supervision and medical recommendation of such licensed medical professional; 3. Nurses or physical therapists who are duly licensed to practice their professions in the State of California while performing activities encompassed by such professional licenses; 4. Trainers of any amateur, semiprofessional or professional athlete or athletic team; 5. Barbers or cosmetologists who are duly licensed under Division Six of the State of California's Business and Professions Code on performing a massage within the scope of the license and for which no separate or increased prices are charged; 6. TM ...... ,h .... ;~, .... h .... r,, ......... Massages which are clearly incidental to the operation of a personal fitness training center, gymnasium or health club may be permitted through the use permit for those operations as required in Chapters 19.56 and 19.72 of the Cupertino Municipal Code. A massage establishment license is not required for the aforementioned businesses. The massage therapist described in tlfis category will however, be required to obtain a massage therapist permit as set forth in this chapter. 7. Acupuncturists who are duly licensed to practice their professions in the State of California while performing activities encompassed by such professional license. Any State licensed acupuncturist who provides massage services by any person not licensed as an acupuncturist must obtain a massage establishment license as prescribed by this Chapter. B. This chapter shall not apply to individuals administering massages or health treatment involving a massage to persons participating in singular ~ occurring recreational events provided the following conditions are met: 1. Massage services are made equally available to all participants in the event; 2. The event is open to participation by the general public or significant segment of the public such as employees of sponsoring or participating corporations; 3. The massage services are provided at the site of the event either during, immediately preceding or immediately following the event; 4. The sponsors of the event have been advised of and have approved the provisions of massage services; 5. The persons providing the massage services are not the primary sponsors of the event. (Ord. 1606 § 3, 1992) 9.06.040 Massage establishment license, massage therapist permit, managing employee permit Required. It is unlawful for any person to engage in, conduct or carry out in or upon any premises within the City the operation of a massage establishment without a massage establishment license obtained from the City Manager. In addition to a City business license, a separate establishment license shall be obtained for each separate massage establishment operated by such person. A massage establishment license shall be issued to any person who has complied with the requirements of this chapter and all other applicable provisions of this code unless grounds for den/al of such license exist. The possession of a valid massage establishment license does not authorize the possessor to perform work for which a massage therapist permit is required. It is unlawful to operate, establish or maintain a massage establishment while the license issued for such business has been suspended, revoked, or has expired No additional applications for licenses will be accepted for locations which are in the appeals process, until the existing license has expired, has been revoked, or has been surrendered by the applicant. (Ord. 1712 (part), 1995: Ord. 1606 § 4, 1992) 9.06.050 Massage establishment license, massage therapist permits, and managing employee permits--Applieation. Any person desiring a license to operate a massage establishment, and/or a massage therapist or a managing employee permit shall submit an application to the City Manager. Within ~ s/xty working days following receipt of the completed application, the City Manager shall either issue the permit or mail a written statement of the reasons for denial thereof by certified mail. T~en necessary, the City Manager or his/her designee may extend the time in order to conduct a complete investigation. The application shall set forth the exact nature of the massage, bath or health treatment to be administered, and the location of the proposed place of business and facilities thereof. ,-,amI-lha, mma~d~l ~ o.~ The r,:,,, T~ ................. * *~ ....~;~°"* *'" Each applicant is required to furnish fingerprints a4qe, a-~,d~ for the purpose of establishing identification and/or criminal record. In addition, tony each applicant shall furnish the following information: 1. The full name, including any nicknames or other names used presently or in the past, and the present street address and phone number of the applicants residence; 2,, 2. The previous address of the applicant for a period of three years immediately prior to the date of the application and the dates of each residence; cppl' ' ofb' want s date zrth; and color of eyes and hair; ....... ~ ..............................~ ........ tegether w:th v_'_mes ced 4, 5.license number and/or state identification number (if any) and social security ,5, 6. The applicant's two most recent employers, including their names, street addresses, cities and phone numbers, and the position of the applicant; 4. Z The names, street addresses and phone numbers of any massage establishment or any other business involving massage, relaxation, or other related business by which the applicant has been employed within the past ten years; and the dates of employment; 4. 8. Any criminal conviction on the part of the applicant for offenses other than traffic violations within the ten years preceding the date of the application; 4. 9. Whether the applicant has ever had a license, certificate, permit, or other authorization to engage in the practice of massage or related business,, whether the operation of a massage establishment, or other business engaged in the practice of massage, was suspended or revoked within the ten (]0) years preceding the date of the application, and dates and reasons for any such suspensions or revocations, and the name and location of the .jurisdiction or agency which suspended or revoked such license, certificate, permit or other authorization; 4. 10. 1J/-hether the applicant, including applicant as a member of a corporation, business, or partnership, has ever operated or been employed at any business that has been the sub,ject of an abatement proceeding under the California Red Light Abatement Act (California Penal Code Sections ]1225 through 1J325) or any similar laws in other.jurisdictions. If the applicant hus previous[y worked at such a business, he/she should state on the application the name and address of the business, the dates on which the applicant was employed at such business, the name and location of the court in which the abatement action occurred, the applicable case number, and the outcome of the abatement action; 4. 11. If the applicant is a partnership, the application shall set forth the names and street addresses of each general and limited partner,. 4. 12. If one or more partners are a corporation, the name of the corporation shah be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the full legal names and street addresses of each of its current officers and directors; 4. 13. Whether the applicant has met the educational requirements set forth in this chapter (except for cases involving applications for massage establishments or managing employee permits, when the applicant has filed a statement under penalty of perjury that he/she will not personally give massages at the massage establishment),. 4. 14. Whether the applicant has previously applied to the City for a massage establishment permit, managing employee permit, or massage therapist permit, the date of the application and every name(s) under which the application was made; 7 4, 15. In the case of an application for a massage establishment permit or managing employee permit, the proposed name and street address of the massage establishment, together with the name and street address of any other massage business operated or managed by the applicant, within the ten (10) years preceding the date of the application; 4. 16. In the case of an application for a massage establishment license or managing employee permit, whether the applicant intends to personally provide massage services at the business; 4. 17. A statement under penalty of perjury that the applicant has not made any false, misleading, or fraudulent statements or omissions of fact in his/her application or any other documents required by the City to be submitted with the application,. 4. 18. The name and street address of the owner or renter and the lease holder of proposed premises of which application is made; 4. 19. Acknowledgement by the applicant that any information contained within the application that may change during the validity of the permit or license will be provided to the City to maintain current records; 20. Authorization for the City, its agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant and responsible managing officer; 21. Such other information as may be deemed necessary by the City Manager. (Ord. 1643 (part), 1994; Ord. 1606 § 5, 1992) 9.06.055 Massage establishment license, massage therapist permits, and managing employee permits --Submittal of documentation. Applicants shall also submit the following information at the time of their application: 1. ,4 copy of an acceptable form of picture identification such as a driver's license or state identification card; 2. Two recent identical color photographs of the applicant (similar to passport photographs); 3. Documentation to prove that the applicant has a lawful right to work in the United States; 4. Such other information as may be deemed necessary by the City Manager. 5. In the case of an applicant for a massage therapist permit, a certificate from a physician, which includes the physicians street address and phone number, and states that the applicant is free from communicable diseases or other conditions which could interfere with his/her ability to engage in the pructice of massage, to the public, in a safe and healthful manner. Communicable disease testing is required for Hepatitis B and Tuberculosis. The medical exam must have been completed within sixty (60) days of the permit application; 6. In the case of an applicant for a massage therapist permit, a diploma, certificate of graduation, transcripts, or other written proof acceptable to the City 8 Manager or his/her designee that the applicant has met the educational requirements set forth in this chapter. 9.06.060 Massage establishment license, massage therapist permit, and managing employee permit--Application fee. Any application for a license to operate a massage establishment and/or a massage therapist permit and managing employee permit shall be accompanied by a non,refundable fee, as established by resolution of the City Council. The application fee shall be used to defray the cost of investigation and report, and is not made in lieu of any other fees or taxes required by the Cupertino Municipal Code. The application fee shall be paid at the time the application is submitted. (Ord. 1606 § 6, 1992 9.06.065 Massage establishment license, massage therapist permit, and managing employee--Expiration and renewal A. A massage establishment license, massage therapist permit, and a managing employee permit shall be renewed every year. A renewal fee will be assessed for each permit being renewed. Applications for the renewal of establishment licenses must be submitted to the City Manager or his/her designee no later than sixty (60) days prior to the expiration of such license or permit. There shall be no grace period for a massage establishment license, massage therapist permit, or managing employee permit shouM the aforementioned be allowed to expire. 9.06.070 Massage establishment license, massage therapist permit, and managing employee Grounds for denial A massage establishment license may be denied by the City Manager if one or more of the following are found: 1. That the applicant made a material misstatement in the application for a license and/or permit; 2. That the applicant or any officers or directors of the applicant has, 'J."?-55n c-'4-'me; been convicted of: (i) An offense which requires registration pursuant to California Penal Code Section 290, or a violation of Penal Code Sections 266(0, 311 through 311.7, 314, 315, 316, 318, 647(b) or (d), or equivalent offenses under the laws of another jurisdiction, even if expunged pursuant to Penal Code Section 1203. 4; (2) A prior offense which involves violation of California Health and Safety Sections 11351, 11352, 11358 through 11363, 11378 through 11380, 11054, 11056, 11057, 11058, any other violation(s) involving illegal possession for sale, or sales of a controlled substance, or equivalent offenses under the laws of another jurisdiction, even if expunged pursuant to Penal Code Section 1203.4; (3) Any offense involving the use of force or violence upon another person; (4) Any offense involving sexual misconduct with children; (5) Any offense involving theft. 3. That the operation of a massage establishment as proposed by the applicant, if permitted, would not comply with all applicable laws including but not limited to all City ordinances and regulations; 4. That the operation of the proposed massage establishment is likely to be a hindrance to the health, safety, welfare or interest of the people of the City; 5. That the applicant is lacking in the background qualifications to conduct a bona fide massage establishment; 6. That the applicant has violated any provision of this chapter or any similar law, role or regulation of another public agency which regulates the operation of massage establishments. (Ord. 1712 (part), 1995; Ord. 1606 § 7, 1992) 9.06.080 Massage establishment employees--Permit requirements. It is unlawful for any licensed massage establishment or managing employee to allow any person to perform massage, bath or health treatment for any compensation unless the person holds a valid massage therapist permit. (Ord. 1712 (part), 1995: Ord. 1606 § 8, 1992) 9.06.050) (Renumbered to Section Cig, _x/_mn~_ger t~_e: neither net!on *.he 7e-~--it :h2!! be deemed to be ............................. lO 2. VL'Stten _-vid_°nce th-_t the 2~p!icmnt ~m~ed~te!y pr~cedLng th~ d~te ef e~e~n~e Ln prefe~!en~l '.verk ~-~ meth~a ~? .......... c +h~ tbs er~;---:e :e~2fied in this chapter; r ............ , ........ ~--, ..... , (Renumbered to Section 9.06.065) 11 9.06.110 Massage therapist permit--Criteria for issuance. A massage therapist permit shall be issued to a person who meets the following criteria: A. Is a member in good standing of a state or nationally chartered organization devoted to the massage specialty and therapeutic approach; and B. Has completed one of the following requirements: 1. Five hundred hours of instruction in a massage specialty and therapeutic approach at a recognized school of massage, 2. Two hundred fifty hours of such instruction and an additional five hundred documented hours of practical experience in a massage specialty and therapeutic approach in one or a combination of the following: a. A primary office of and under the direct supervision of a medical professional licensed by the State of California, specifically a physician, surgeon, chiropractor, osteopath, physical therapist or nurse, while such medical professional is performing activities encompassed by such license and is physically on the premises where the massage therapy is being administered, eff-~r:d by z recegr_jzed schee! ,~r k' g d d! ' ' ~r~,A ~'~ ~,,,~ ~. c~A ~ ~ ~ ma~ (Renumbered to Section 9.06. 0) 3. Has taken and successfully passed the National Cert~cation Examination administered by the National Cert~cation Board/or Therapeutic Massage and Bodywork. The applicant must submit a current certi~cate with the application to satisfy this criteria. 9. 06.120 Massage therapist practical examination. The applicant shall take and pass a written test and practical performance examination administered through a medical practitioner approved by the City of Cupertino wherein the applicant has been required to demonstrate a basic knowledge of anatomy, physiology, hygiene and massage. If the applicant fails the practical exam, he/she shall be permitted to retake the exam once, after at least thirty (30) but no more than sixty (60) days have elapsed from the date of the first exam, provided that the applicant pays the applicable exam fees for a second time. Should the applicant fail the exam a second time, the application shall be denied, and the applicant shall not be permitted to apply again for a massage therapist permit for a period of one (1) year. 12 9.06.160 Annual medical examination for massage therapist. A. Any person who has been issued a massage therapist permit shall file with the City Manager each e · · ,h;..., · y ar w~thm .....~ s~cty (60) days of the anniversary date of the issuance of the permit an updated certificate from a medical doctor stating that the permittee massage therapist has, within thirty days immediately prior to the filing of the certificate, been examined and been found to be free of any contagious or communicable disease ca~b'_e Section 9. 06. 055(5). B. It is unlawful for any person who has neglected, failed, or refused to file a certificate required by subsection A of this section to act as a massage therapist. Failure to submit the required certificate shall be grounds for revocation of the permit. (Ord. 1712 (part), 1995: Ord. 1606 § 15, 1992) o n< 1.m n/r ...... ,,k .... ~o~ ..~....;~ c. ..... a~ ¢~. '2en~aL (Renumbered to Section 9.06.070) ............ rr ........... . .... rr s afe~', v.'e~f-2e er the interest cf the pee~ of the C!~'; 9.06.180 @ff s'_'te Outcall massage permit--Application. An ....... outcall massage permit may be issued only to a Cupertino licensed massage therapzst .... ~. In addition to the permitting criteria for massage therapist as required in this Chapter, -%st!~ns 9.95.999, 9.05.!!9 ~_nd 9.05.!50, an 13 applicant must provide a list of all businesses and residences where the applicant will be performing efts!re outcall massage. The massage therapist must keep the City Manager or his/her designee, advised in writing of changes to said list. (Ord. 1643 (part), 1994) 9.06.190 Off :?-e OutcaH massage permit Criteria. Off site Outcall massage may be performed only under the following criteria: A. Corporate. 1. The massage treatment shall consist of"corporate" massage only as defined in Section 9.06.020. 2. Off site Outcall "corporate" massage clients shall be owners and employees of the business at which the massage therapist will be performing massage. B. Residential. 1. The massage treatment shall consist of "res'.'a__~nti~_!" corporate massage only as defined in Section 9.06.020. 2. "Residential" massage clients must possess a referral from a licensed chiropractor or physician to the effect that treatment in a licensed massage establishment is not recommended. A record of every such referral shall be obtained and kept by the person rendering the services for a period of one year from date of referral. Such record shall show the name and address of the doctor, the date and any prescription number. (Ord. 1643 (part), 1994) 9. 06.193 Operating requirements for massage establishments Unless otherwise specified in this Chapter, aH massage establishments shah comply with the following operating requirements: (a) Exterior signs. A recognizable and legible sign shah be posted at the main entrance identifying the business as a massage establishment. In addition, the sign shah comply with the City sign ordinance. (b) Posting of massage establishment license, massage therapist permit, and managing employee permit. A copy of the massage establishment license, massage therapist permit(s), and managing employee permit(s), shah be posted in a conspicuous place in such a manner that it can easily be seen by persons entering the establishment. Passport size photographs shah be affixed to the respective massage therapist permit(s) and managing employee permit(s) on display. (c) Designation of managing employee. If the holder of the massage establishment license does not personally manage the business during aH hours of operation, he/she shah designate one or more managing employee(s) who shah be in charge of the operation of the business during his/her 14 absence. If the managing employee(s,) will personally provide massages at the business, he/she must obtain a massage therapist permit. (d) Posting of semites available and fees. A list of all se~ices available, the price thereof and the length of time each se~ice shall be performed, shall be posted or avai&ble in a conspicuo~ place in such a manner that it can easily be seen by persons entering the establishment. No other se~iees, other than those posted, shall be provi&d. (e) PaymenUtips. Payment for massage se~iees, and any tips, shall be paid for at the designated reception area of the business establishment. (~ Alcohol prohibited. No alcoholic beverages may be located on the premises of the massage establishment while the business is open for the practice of massage. (g) Maintain wriRen records. EveW m~sage establis~ent sh~l ke~ a ~en record of the date ~d ho~ of each semite prohded, ~e nme ~d address of each pa~on ~d the se~ice received, ~d the n~e of ~e m~sage therapist a~inistehng ~e s~ice. Such records shall be open to inspection only by officials of ~e Ciw of Cupe~no ch~ged wi~ enforcement of ~s chapter. These records may not be used for ~y other p~ose ~ as records of semite provided ~d may not be prohded to other p~ies by ~e m~sage establis~ent or semite ~less othe~ise required by law. Such records sh~l be ret~ed on the premises of ~e m~sage establis~ent for a period of ~o ye~s. (Ord. 1712 ~), 1995) (h) Standard of&ess for massage establishment employees. ~e hol&r of the massage establishment permit, massage therapists, managing employees, and all other employees of the massage establishment shall remain fully clothed in clean outer ga~ents while on the premises of the massage establishment. At a minimum such clothing shall be made of nontransparent material and shall not expose the buttock, genital area or breasts of any employee or permit hol&r at any time. (i) Operating hours. No massage establishment shall be kept open for business and no massage therapist shall administer massages after the hour of l O.'O0 p.m. or before the hour of 7:00 a.m. Operating hours may be further restricted by the Ci~ Manager pursuant to Section 9.06.200. ~) ~irrors prohibRe~ In general, mirrors are prohibited in rooms where massages are pe~omed,, however, one ~H length or small mirror may be mounted vertically to the wall, not less than ~en~ (20) inches from the floor. (k) Lighting required. Massage establishments will be well-lighted at all times during b~iness hours. Rooms where massage semites are provided will be a&quately lighted when occupied. 15 9.06.196 Massage establishment sanitary conditions/condition of premises. (1) Required maintenance of massage establishment. AH premises and facilities of the massage establishment shah be maintained in a clean and sanitary condition and shah be thoroughly cleaned after each day of operation. The premises and facilities shah meet applicable code requirements of the city, including but not limited to those related to the safety of structures, adequacy of the plumbing, heating, ventilation, and waterproofing of rooms in which showers, water, or steam baths are used. (2) Linens. AH massage establishments shah provide clean laundered sheets, towels, and other linen in sufficient quantity for use by their clients. Such linens shah be laundered after each use and stored in a sanitary manner. No common use of linens or towels shah be permitted. Heavy white paper may be substituted for sheets on massage tables, provided such paper is used only once for each client and is then discarded into a sanitary receptacle. Containers shah be provided for the storage of aH soiled linens. (3) Privacy standards for massage rooms, dressing rooms, and restrooms. Dressing rooms and restrooms may only be used by clients of the same sex at the same time. The massage establishment shah provide doors for aH dressing rooms, and massage rooms. Draw drapes, curtain enclosures, or accordion-pleated enclosures are acceptable in lieu of doors for dressing rooms and massage rooms. 9. 06.198 Prohibited acts. (1) Touching of sexual and genital parts of client during massage. No holder of a massage establishment Hcense, massage therapist permit, managing employee permit, or any other employee of a massage establishment shah place either his/her hand or hands upon, or touch with any part of his/her body, or with a mechanical device, a sexual or genital part of any other person in the course of a massage, or massage a sexual or genital part of any other person. Sexual and genital parts shaH include the genitals, pubic area, anus, or perineum of any person. (2~) Uncovering and exposure of sexual and genital parts of client before, during, or after massage. No holder of a massage establishment license, massage therapist permit, managing employee permit, or any other employee of a massage establishment shah uncover and expose the sexual or genital parts of a client or themselves while engaged in the practice of massage, or before or after a massage. This subsection does not prohibit a client from turning over in the course of a massage, provided the massage therapist holds a towel, sheet, blanket, or other drape over the client to protect his/her 16 genital and sexual parts from exposure. If the client exposes the genital area, the therapist shall immediately direct the client to cover him/herself. If the client refuses to comply, the massage therapist shall inform the client that no further massage will be provided and the client will be asked to leave the premises. If the client refuses to leave the premises, the massage therapist must immediately leave the room and notify the managing employee. (3) Outcall massage services. It shall be unlawful for any massage establishment or massage therapist to provide outcall massage services within the City unless it occurs at the client's residence, and the client possesses a referral from a licensed chiropractor or physician stating that treatment in a licensed massage establishment is not recommended and the medical reason why it is not recommended, or at a business establishment in which clients shall be owners and employees of the business and the massage treatment consists of a "corporate massage" as defined in Section 9.06.020(A). A record of every such referral shall be obtained and kept by the massage therapist rendering the service for a period of one year from the date of referral. Such record shall show the full legal name and street address of the doctor or chiropractor, the date, and any prescription number. Massage therapists providing outcall massage must comply with all provisions of this chapter. (4) Transfer of massage establishment license, massage therapist permit, managing employee permit. No permit issued pursuant to this chapter shall be transferred or assigned in any matter, whether by authorization of law or otherwise, from any location to location or from person to person, except that a person possessing a massage therapist permit, issued by the City, shall be able to move from one employer to another without filing a new application or paying a new fee, so long as the permit holder notifies the City Manager or his/her designee, in writing, of the change in his/her employment within five (5) days of such change. Failure to make this notification within five (5) days shall be grounds for suspension, revocation, or denial of the permit. 9.06.200 Suspension or revocation--Grounds. Any license or permit issued under this chapter may be suspended or revoked by the City Manager for any reason, which would justify the refusal to grant a license or permit originally. (Ord. 1643 (part), 1994; Ord. 1606 § 18, 1992) 9.06.210 Suspension or revocation--Notice---Hearing. The holder of the license or permit shall be given prompt notice of revocation or suspension of the license or permit and shall immediately desist from engaging in the activity. The notice shall fix a time and place, not less than five or more than I7 thirty days after service thereof, at which time the holder of the license or permit may appear before the City Manager and be granted a hearing upon the merits of such suspension or revocation. If after such heating the license or permit is ordered revoked, the holder shall have the fight to appeal such action to the City Council in accordance with Section ~ 9.06.220 of this chapter. (Ord. 1643 (part), 1994; Ord. 1606 § 19, 1992) 9.06.220 Appeals. Any person whose license or permit has been denied, suspended or revoked may appeal the administrative decision of the City Manager, or designated representative, by filing a written notice of appeal with the City Clerk within five working days after receipt of notice of the decision. Such appeal shall be heard by the City Council, which may affirm, amend or reverse the order, or take other action deemed appropriate. The Clerk shall give written notice of the time and place of the heating to the appellant and any other person requesting notice. In conducting the hearing, the City Council shall not be limited by the technical rules of evidence. Any person requesting an appeal shall pay a nonrefundable fee set forth in the City fee schedule at the time of filing the appeal. (Ord. 1643 (part), 1994; Ord. 1606 § 20, 1992) ~.~n-.2-a-n D'-'sp!:y ~--~ ~-~-'~2t !~-e=s-~-~. (Renumbered to Section 9. 06.193(b) ~ 9.06.230 (Renutnbered) Inspection by officials--Premises. Any and all investigating officials of the City of Cupertino shall have the right to enter massage establishments from time to time during regular business hours to make reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing or health regulations, and to ascertain compliance with the provisions of this chapter. A warrant shall be obtained whenever required by law. (Ord. 1712 (part), 1995; Ord. 1643 (pm), 1994) o n~*~n · ..... ,;.. by -~":-~o ~ .... a,, ,rRenumbered to Section 9. 06.193(n)) 18 9.06.240 (Renumbered) Violation--Public nuisance Violations of any provisions of this chapter constitutes a public nuisance which may be abated pursuant to Chapter 1.09 of the Cupertino Municipal Code. (Ord. 1643 (part), 1994; Ord. 1606 § 23, 1992) ~ 9.06.250 (Renumbered) Violation--Penalty. Any person who violates the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Chapter 1.12 of the Cupertino Municipal Code. (Ord. 1712 (part), 1995: Ord. 1643 (part), 1994; Ord. 1606 § 22, 1992) ~ 9.06.260 (Renumbered) Continuing violations--Alternative remedies. Nothing in this chapter shall be deemed to prevent the City Council from directing the City Attorney to commence civil action to enjoin the continued violation of any provisions of this chapter or to abate a nuisance, as an alternative, or in conjunction with any other civil or criminal proceedings provided for herein. (Ord. 1643 (.part), 1994; Ord. 1606 § 24, 1992) 0.06.2-75 9.06.270 (Renumbered) Application to existing massage establishments and massage therapist. The provisions of this chapter shall become applicable to massage establishments and persons engaged in the practice of massage which lawfully existed prior to the effective date of the ordinance codified in this chapter. In order to comply with this chapter, each owner of a massage establishment shall comply with the provisions of this chapter within t_h.5?.~, sixty (60) days of the adoption, and each massage therapist must comply within ninety (90) days of adoption. (Ord. 1712 (part), 1995) 19 Chapter 9.06 MASSAGE ESTABLISHMENTS AND SERVICES 9.06.010 Purpose of provisions. A. It is the purpose and intent of this chapter to provide for the orderly regulation of massage therapists and massage establishments as defined in this chapter in the interest of public health, safety and welfare by providing certain minimum qualifications for the operators of massage establishments and massage therapists. This chapter is adopted based on the following findings: 1. That the City of Cupertino has recognized the field of massage therapy as a viable professional field; 2. That the City of Cupertino wants to recognize and respect professional massage therapy organizations and qualified professionals; 3. The City of Cupertino also finds that the rules and regulations as developed in this chapter strive for equality of all massage organizations and therapists while attempting to prevent serious objectionable characteristics which massage parlor establishments may have created in the past. B. It is intended that massage therapy is a profession of the healing arts and subject to all zoning ordinances and regulations as may be required for professional uses. A. It is also intended that massage uses not regulated or exempted by this chapter are considered massage parlors thus regulated by the provisions in Chapter 19.104 regulating adult-oriented commercial activities. (Ord. 1712 (part), 1995; Ord. 1606 § 1, 1992) 9.06.020 Definitions. For the purpose of this chapter, unless the context clearly requires a different meaning, the words are termed and phrased as set forth in this section and shall have the meaning given them in this section: A. "Corporate massage" means any massage of the neck, arms, shoulders and back area above the waist where the client is fully clothed and done without the use of supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice. C. "License" means a license to operate a massage establishment as required by this chapter. 20 C. "Managing employee" means any employee of a massage establishment who has been designated by the holder of the massage establishment license to manage the business in his/her absence. The managing employee may perform massages at the business only if he~she obtains and maintains in effect a massage therapist permit. O,,, D. "Massage" means any method of pressure on or friction against or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body with the hands, hot towels or with any mechanical or electrical apparatus or other appliances or devices with or without such supplementary aides as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations; or by baths, not limited to vapor, electric tub, mineral fomentation, or any other type of bath. ~, E. "Massage establishment" means any licensed establishment having a fixed place of business where any individual, firm, association, partnership, corporation, joint venture, or a combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on for consideration, massages or health treatments involving m~_ss~ge_o ~_s~_"'4 ...... .... ~ ............ ~'"~*;~'"o massage, including but not limited to any hot tub/sauna, relaxation, or tanning establishment in which massage services are made available to clients· ~, F. "Massage therapist" means any person who has been granted a permit pursuant to this chapter and who administers massages, baths or health treatments involving massages or baths as the principal function to another person for any compensation whatsoever, and meeting the cert~m requirements established by this chapter. G. "Outcall massage service" means the engaging in or carrying on of massage for consideration at a location other than a licensed massage establishment. G, H. "Permit" means a permit to engage in activities of a massage therapist or a managing employee as required by this chapter. 1=I., I. "Person" means any individual, firm, association, partnership, corporation, joint venture, or combination of individuals. 1, J. "Recognized school of massage" means any school or institute of learning which: 2, J. Requires a residence course of study of not fewer than one hundred hours within at least three months on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy, physiology, and hygiene, and at least seventy-five hours of demonstration and practice of massage, techniques, and which provides a diploma or certificate of graduation upon successful completion of such course of study or course work recognized by national professional massage or body therapy organizations ..... *?' 21 & 2. Has been approved pursuant to California Education Code Section 94311 or, if the school is not located in California, has complied with standards commensurate with those required in said Section 94311; 4. 3. Any school or institution of learning offering or allowing correspondence course credit not requiring actual attendance at class, or courses of massage therapy not approved by the California Department of Education shall not be deemed a recognized school of massage. ~, K. "Residential massage" means engaging in or carrying on of massage at a residence where the client either owns or rents the residence. 9.06.030 Exemptions. A. A massage establishment license shall not be required for the following persons while engaging in the performance of the duties of their respective professions: 1. Physicians, surgeons, chiropractors or osteopaths who are duly licensed to practice their respective professions in the State of California while performing activities encompassed by such professional licenses; 2. Massage therapists ~__"_~_ m~ss~_g_~ ther~'_'st tr~_!n_~_~s while performing massage in the offices of a licensed physician, surgeon, chiropractor or osteopath and while under the direct supervision and medical recommendation of such licensed medical professional; 22 3. Nurses or physical therapists who are duly licensed to practice their professions in the State of California while performing activities encompassed by such professional licenses; 4. Trainers of any amateur, semiprofessional or professional athlete or athletic team; 5. Barbers or cosmetologists who are duly licensed under Division Six of the State of California's Business and Professions Code on performing a massage within the scope of the license and for which no separate or increased prices are charged; 6. x~ ...... ,~. .... ~o, .... ~ .... ~"~'-' '~ Massages which are clearly incidental to the operation of a personal fitness training center, gymnasium or health club may be permitted through the use permit for those operations as required in Chapters 19.56 and 19.72 of the Cupertino Municipal Code. A massage establishment license is not required for the aforementioned businesses. The massage therapist described in this category will however, be required to obtain a massage therapist permit as set forth in this chapter. 7. Acupuncturists who are duly licensed to practice their professions in the State of California while performing activities encompassed by such professional license. Any State licensed acupuncturist who provides massage services by any person not licensed as an acupuncturist must obtain a massage establishment license as prescribed by this Chapter. B. This chapter shall not apply to individuals administering massages or health treatment involving a massage to persons participating in singular occurring recreational events provided the following conditions are met: 1. Massage services are made equally available to all participants in the event; 2. The event is open to participation by the general public or significant segment of the public such as employees of sponsoring or participating corporations; 3. The massage services are provided at the site of the event either during, immediately preceding or immediately following the event; 4. The sponsors of the event have been advised of and have approved the provisions of massage services; 5. The persons providing the massage services are not the primary sponsors of the event. (Ord. 1606 § 3, 1992) 9.06.040 Massage establishment license, massage therapist permit, managing employee permit--Required. It is unlawful for any person to engage in, conduct or carry out in or upon any premises within the City the operation of a massage establishment without a massage establishment license obtained from the City Manager. In addition to a City business license, a separate establishment license shall be obtained for each separate massage establishment operated by such person. A massage 23 establishment license shall be issued to any person who has complied with the requirements of this chapter and all other applicable provisions of this code unless grounds for denial of such license exist. The possession of a valid massage establishment license does not authorize the possessor to perform work for which a massage therapist permit is required. It is unlawful to operate, establish or maintain a massage establishment while the license issued for such business has been suspended, revoked, or has expired. No additional applications for licenses will be accepted for locations which are in the appeals process, until the existing license has expired, has been revoked, or has been surrendered by the applicant. (Ord. 1712 (part), 1995: Ord. 1606 § 4, 1992) 9.06.050 Massage establishment license, massage therapist permits, and managing employee permits--Application. Any person desiring a license to operate a massage establishment, and/or a massage therapist or a managing employee permit shall submit an application to the City Manager. Within fc?j five s/xty working days following receipt of the completed application, the City Manager shall either issue the permit or mail a written statement of the reasons for denial thereof by certified mail. When necessary, the City Manager or his/her designee may extend the time in order to conduct a complete investigation. The application shall set forth the exact nature of the massage, bath or health treatment to be administered, and the location of the proposed place of business and facilities thereof, paad-~q~md ~ ofeask_,_,.~""~;"~"* ................ .m,~ C:'~' _x~n~_ger ........... ~ ._.~ ........ * *~'~ ~-~!~.z~-nt to Each applicant is required to furnish fingerprints wk.~'_ needed for the purpose of establishing identification and/or criminal record. In addition, a~ each applicant shall furnish the following information: 1. The full name, including any nicknames or other names used presently or in the past, and the present street address and phone number of the applicants residence; 2,, 2. The previous address of the applicant for a period of three years immediately prior to the date of the application and the dates of each residence; applicant's date of birth; ;--*-~=A;,~'.I ....... ,I;--,~ +~, ,~,+, cf 2pplication; The applicant's height, weight and color of eyes and hair; 24 4. 5.license number and/or state identification number (if any) and social security number; ,5, 6. The applicant's two most recent employers, including their names, street addresses, cities and phone numbers, and the position of the applicant; 4, 7. The names, street addresses and phone numbers of any massage establishment or any other business involving massage, relaxation, or other related business by which the applicant has been employed within the past ten years; and the dates of employment; 4, 8. Any criminal conviction on the part of the applicant for offenses other than traffic violations within the ten years preceding the date of the application; 4. 9. Whether the applicant has ever had a license, certificate, permit, or other authorization to engage in the practice of massage or related business; whether the operation of a massage establishment, or other business engaged in the practice of massage, was suspended or revoked within the ten (10) years preceding the date of the application, and dates and reasons for any such suspensions or revocations, and the name and location of the jurisdiction or agency which suspended or revoked such license, certificate, permit or other authorization; 4, 10. Whether the applicant, including applicant as a member of a corporation, business, or partnership, has ever operated or been employed at any business that has been the subject of an abatement proceeding under the California Red Light Abatement Act (California Penal Code Sections 11225 through 11325) or any similar laws in other jurisdictions. If the applicant has previously worked at such a business, he/she should state on the application the name and address of the business, the dates on which the applicant was employed at such business, the name and location of the court in which the abatement action occurred, the applicable case number, and the outcome of the abatement action; 4. 1J. If the applicant is a partnership, the application shall set forth the names and street addresses of each general and limited partner; 4. 12. If one or more partners are a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the full legal names and street addresses of each of its current officers and directors; 4. 13. Whether the applicant has met the educational requirements set forth in this chapter (except for cases involving applications for massage establishments or managing employee permits, when the applicant has filed a statement under penalty of perjury that he/she will not personally give massages at the massage establishmenO ; 4, 14. Whether the applicant has previously applied to the City for a massage establishment permit, managing employee permit, or massage therapist permit, the date of the application and every name(s) under which the application was made; 25 4, 15. In the case of an application for a massage establishment permit or managing employee permit, the proposed name and street address of the massage establishment, together with the name and street address of any other massage business operated or managed by the applicant, within the ten (10) years preceding the date of the application; 4, 16. In the case of an application for a massage establishment license or managing employee permit, whether the applicant intends to personally provide massage services at the business; 4, 17. A statement under penalty of perjury that the applicant has not made any false, misleading, or fraudulent statements or omissions of fact in his/her application or any other documents required by the City to be submitted with the application; 4, 18. The name and street address of the owner or renter and the lease holder of proposed premises of which application is made; 4, 19. Acknowledgement by the applicant that any information contained within the application that may change during the validity of the permit or license will be provided to the City to maintain current records; 20. Authorization for the City, its agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant and responsible managing officer; 21. Such other information as may be deemed necessary by the City Manager. (Ord. 1643 (part), 1994; Ord. 1606 § 5, 1992) 9.06.055 Massage establishment license, massage therapist permits, and managing employee permits --Submittal of documentation. Applicants shah also submit the following information at the time of their application: 1. A copy of an acceptable form of picture identification such as a driver's license or state identification card; 2. Two recent identical color photographs of the applicant (similar to passport photographs); 3. Documentation to prove that the applicant has a lawful right to work in the United States; 5. Such other information as may be deemed necessary by the City Manager. 5. In the case of an applicant for a massage therapist permit, a certificate from a physician, which includes the physicians street address and phone number, and states that the applicant is free from communicable diseases or other conditions which could interfere with his/her ability to engage in the practice of massage, to the public, in a safe and healthful manner. Communicable disease testing is required for Hepatitis B and Tuberculosis. The medical exam must have been completed within sixty (60) days of the permit application; 6. In the case of an applicant for a massage therapist permit, a diploma, certificate of graduation, transcripts, or other written proof acceptable to the City 26 Manager or his/her designee that the applicant has met the educational requirements set forth in this chapter. 9.06.060 Massage establishment license, massage therapist permit, and managing employee permit Application fee. Any application for a license to operate a massage establishment and/or a massage therapist permit and managing employee permit shall be accompanied by a nonrefundable fee, as established by resolution of the City Council. The application fee shall be used to defray the cost of investigation and report, and is not made in lieu of any other fees or taxes required by the Cupertino Municipal Code. The application fee shall be paid at the time the application is submitted. (Ord. 1606 § 6, 1992 9.06.065 Massage establishment license, massage therapist permit, and managing employee--Expiration and renewal A. A massage establishment Hcense, massage therapist permit, and a managing employee permit shall be renewed every year. A renewal fee will be assessed for each permit being renewed. Applications for the renewal of establishment licenses must be submitted to the City Manager or his/her designee no later than sixty (60) days prior to the expiration of such license or permit. There shall be no grace period for a massage establishment license, massage therapist permit, or managing employee permit should the aforementioned be allowed to expire. 9.06.070 Massage establishment license, massage therapist permit, and managing employee--Grounds for denial A massage establishment license may be denied by the City Manager if one or more of the following are found: 1. That the applicant made a material misstatement in the application for a license and/or permit; 2. That the applicant or any officers or directors of the applicant has, ,~.-.'thLn crime; been convicted of: (6) An offense which requires registration pursuant to California Penal Code Section 290, or a violation of Penal Code Sections 266(0, 311 27 through 311.7, 314, 315, 316, 31& 647(1;) or (d), or equivalent offenses under the laws of another jurisdiction, even if expunged pursuant to Penal Code Section 1203.4; (7) A prior offense which involves violation of California Health and Safety Sections 11351, 11352, 11358 through 11363, 11378 through 11380, 11054, 11056, 11057, 11058, any other violation(s.) involving illegal possession for sale, or sales of a controlled substance, or equivalent offenses under the laws of another jurisdiction, even if expunged pursuant to Penal Code Section 1203.4; (8) Any offense involving the use of force or violence upon another person; (9) Any offense involving sexual misconduct with children; (1 O) Any offense involving theft. 3. That the operation of a massage establishment as proposed by the applicant, if permitted, would not comply with all apphcable laws including but not limited to all City ordinances and regulations; 4. That the operation of the proposed massage establishment is likely to be a hindrance to the health, safety, welfare or interest of the people of the City; 5. That the applicant is lacking in the background qualifications to conduct a bona fide massage establishment; 6. That the applicant has violated any provision of this chapter or any similar law, rule or regulation of another public agency which regulates the operation of massage establishments. (Ord. 1712 (part), 1995; Ord. 1606 § 7, 1992) 9.06.080 Massage establishment employees--Permit requirements. It is unlawful for any licensed massage establishment or managing employee to allow any person to perform massage, bath or health treatment for any compensation unless the person holds a valid massage therapist permit. (Ord. 1712 (part), 1995: Ord. 1606 § 8, 1992) 9.06.050) (Renumbered to Section 28 (Renumbered to Section 9.06.065) 29 9.06.110 Massage therapist permit--Criteria for issuance. A massage therapist permit shall be issued to a person who meets the following criteria: A. Is a member in good standing of a state or nationally chartered organization devoted to the massage specialty and therapeutic approach; and B. Has completed one of the following requirements: 1. Five hundred hours of instruction in a massage specialty and therapeutic approach at a recognized school of massage, 2. Two hundred fifty hours of such instruction and an additional five hundred documented hours of practical experience in a massage specialty and therapeutic approach in one or a combination of the following: a. A primary office of and under the direct supervision of a medical professional licensed by the State of California, specifically a physician, surgeon, chiropractor, osteopath, physical therapist or nurse, while such medical professional is performing activities encompassed by such license and is physically on the premises where the massage therapy is being administered, offered by (Ord. ~ *~ ~ t""'~ ~ aaq. ,~,~ ~ ~n~ ~ ~ ~ ~ oo~) (Renumbered to Section 9. o .12o) 3. Has taken and successfully passed the National Certification Examination administered by the National Certification Board for Therapeutic 3,fassage and Bodywork. The applicant must submit a current certificate with the application to satisfy this criteria. 9.06.120 Massage therapist practical examination. The applicant shah take and pass a written test and practical performance examination administered through a medical practitioner approved by the City of Cupertino wherein the applicant has been required to demonstrate a basic knowledge of anatomy, physiology, hygiene and massage. If the applicant fails the practical exam, he/she shah be permitted to retake the exam once, after at least thirty (30) but no more than sixty (60) days have elapsed from the date of the first exam, provided that the applicant pays the applicable exam fees for a second time. Should the applicant fail the exam a second time, the application shah be denied, and the applicant shall not be permitted to apply again for a massage therapist permit for a period of one (1) year. 30 9.06.160 Annual medical examination for massage therapist. A. Any p~rson who has been issued a massage therapist permit shall file with the City Manager each year within t.hr?.y sixty (60) days of the anniversary date of the issuance of the permit an updated certificate from a medical doctor stating that the permittee massage therapist has, within thirty days immediately prior to the filing of the certificate, been examined and been found to be fi'ee of any contagious or communicable disease caFeb!e .,~,.1 ...... ; .... h,~.4 ;. +h- 7erfe._,:mm~_ce .,r o,,,.m,~,; .......... set forth in Section 9.06. 055(5). B. It is unlawful for any person who has neglected, failed, or refused to file a certificate required by subsection A of this section to act as a massage therapist. Failure to submit the required certificate shall be grounds for revocation of the permit. (Ord. 1712 (part), 1995: Ord. 1606 § 15, 1992) n ng ~'m ~::::g_= *,- .... .'~* ....~* t-, ..... a...r..,,. ,a .,,.. ~..', (Renumbered to Section 9.06.070) .......... rr ................ - .... rr 9.06.180 Off :~-te Outcall massage permit--Application. An eft site outcall massage permit may be issued only to a Cupertino licensed massage therapist en!y. In addition to the permitting criteria for massage therapist as required in this Chapter, Eect!ens 9.05.099, 9.05A!9 m~-d 9.05.!~-0, an 31 applicant must provide a list of all businesses and residences where the applicant will be performing eff s'_'*.e outcall massage. The massage therapist must keep the City Manager or his/her designee, advised in writing of changes to said list. (Ord. 1643 (part), 1994) 9.06.190 Off :'.'re Outcall massage permit Criteria. Off :'.'re Outcall massage may be performed only under the following criteria: A. Corporate. 1. The massage treatment shall consist of"corporate" massage only as defined in Section 9.06.020. 2. ©ff s'_'te Outcall "corporate" massage clients shall be owners and employees of the business at which the massage therapist will be performing massage. B. Residential. 3. The massage treatment shall consist of "res!~ent'_'2!" corporate massage only as defined in Section 9.06.020. 4. "Residential" massage clients must possess a referral from a licensed chiropractor or physician to the effect that treatment in a licensed massage establishment is not recommended. A record of every such referral shall be obtained and kept by the person rendering the services for a period of one year from date of referral. Such record shall show the name and address of the doctor, the date and any prescription number. (Ord. 1643 (part), 1994) 9. 06.193 Operating requirements for massage establishments Unless otherwise specified in this Chapter, all massage establishments shall comply with the following operating requirements: (l) Exterior signs. A recognizable and legible sign shall be posted at the main entrance identifying the business as a massage establishment. In addition, the sign shall comply with the City sign ordinance. (m) Posting of massage establishment license, massage therapist permit, and managing employee permiL A copy of the massage establishment license, massage therapist permit(s), and managing employee permit(s), shall be posted in a conspicuous place in such a manner that it can easily be seen by persons entering the establishment. Passport size photographs shall be affixed to the respective massage therapist permit(s) and managing employee permit(s) on display. (n) Designation of managing employee. If the holder of the massage establishment license does not personally manage the business during all hours of operation, he/she shall designate one or more managing employee(s) who shall be in charge of the operation of the business during his/her 32 absence. If the managing employee(s) will personally provide massages at the business, he/she must obtain a massage therapist permit. (o) Doors to be unlocked. AH doors, except restroom doors, will be kept unlocked at aH times during business hours. Doors to aH dressing and massage rooms shah be kept unlocked at aH times. There shah be no locking devices on the doors to rooms in which massages are performed. (p) Posting of services available and fees. A list of all services available, the price thereof and the length of time each service shah be performed, shall be posted or available in a conspicuous place in such a manner that it can easily be seen by persons entering the establishment. No other services, other than those posted, shah be provided. (q) Payment/tips. Payment for massage services, and any tips, shah be paid for at the designated reception area of the business establishment. (r) ,4lcohol prohibited. No alcoholic beverages may be located on the premises of the massage establishment while the business is open for the practice of massage. (s) Maintain written records. Every massage establishment shall keep a written record of the date and hour of each service provided, the name and address of each patron and the service received, and the name of the massage therapist administering the service. Such records shall be open to inspection only by officials of the City of Cupertino charged with enforcement of this chapter. These records may not be used for any other purpose than as records of service provided and may not be provided to other parties by the massage establishment or service unless otherwise required by law. Such records shall be retained on the premises of the massage establishmc~nt for a period of two years. (Ord. 1712 (part), 1995) (t) Standard of dress for massage establishment employees. The holder of the massage establishment permit, massage therapists, managing employees, and aH other employees of the massage establishment shah remain fidly clothed in clean outer garments while on the premises of the massage establishment. At a minimum such clothing shall be made of nontransparent material and shah not expose the buttocks, genital area or breasts of any employee or permit holder at any time. (u) Operating hours. No massage establishment shah be kept open for business and no massage therapist shah administer massages after the hour of 10:00 p.m. or before the hour of 7:00 a.m. Operating hours may be further restricted by the City Manager pursuant to Section 9.06.200. (v) Mirrors prohibited. In general mirrors are prohibited in rooms where massages are performed; however, one full length or small mirror may be mounted vertically to the wall, not less than twenty (20) inches from the ftoor. (w) Lighting required. Massage establishments will be well-lighted at aH times during business hours. Rooms where massage services are provided will be adequately lighted when occupied. 33 9.06.196 Massage establishment sanitary conditions/condition of premises. (4) Required maintenance of massage establishment. AH premises and facilities of the massage establishment shah be maintained in a clean and sanitary condition and shah be thoroughly cleaned after each day of operation. The premises and facilities shah meet applicable code requirements of the city, including but not limited to those related to the safety of structures, adequacy of the plumbing, heating, ventilation, and waterproofing of rooms in which showers, water, or steam baths are used. (5) Linens. All massage establishments shah provide clean laundered sheets, towels, and other linen in sufficient quantity for use by their clients. Such linens shah be laundered after each use and stored in a sanitary manner. No common use of linens or towels shall be permitted. Heavy white paper may be substituted for sheets on massage tables, provided such paper is used only once for each client and is then discarded into a sanitary receptacle. Containers shah be provided for the storage of aH soiled linens. (6) Privacy standards for massage rooms, dressing rooms, and restrooms. Dressing rooms and restrooms may only be used by clients of the same sex at the same time. The massage establishment shah provide doors for all dressing rooms, and massage rooms. Draw drapes, curtain enclosures, or accordion-pleated enclosures are acceptable in lieu of doors for dressing rooms and massage rooms. 9. 06.198 Prohibited acts. (4) Touching of sexual and genital parts of client during massage. No holder of a massage establishment license, massage therapist permit, managing employee permit, or any other employee of a massage establishment shah place either his/her hand or hands upon, or touch with any part of his/her body, or with a mechanical device, a sexual or genital part of an)z other person in the course ora massage, or massage a sexual or genital part of any other person. Sexual and genital parts shah include the genitals, pubic area, anus, or perineum of any person. (5) Uncovering and exposure of sexual and genital parts of client before, during, or after massage. No holder of a massage establishment license, massage therapist permit, managing employee permit, or any other employee of a massage establishment shah uncover and expose the sexual or genital parts ora client or themselves while engaged in the practice of massage, or before or after a massage. This subsection does not prohibit a client from turning over in the course of a massage, provided the massage therapist holds a towel, sheet, blanket, or other drape over the client to protect his/her 34 genital and sexual parts from exposure. If the client exposes the genital area, the therapist shall immediately direct the client to cover him/herself. If the client refuses to comply, the massage therapist shall inform the client that no further massage will be provided and the client will be asked to leave the premises. If the client refuses to leave the premises, the massage therapist must immediately leave the room and notify the managing employee. (6) Outcall massage services. It shall be unlawful for any massage establishment or massage therapist to provide outcall massage services within the City unless it occurs at the client's residence, and the client possesses a referral from a licensed chiropractor or physician stating that treatment in a licensed massage establishment is not recommended and the medical reason why it is not recommended, or at a business establishment in which clients shall be owners and employees of the business and the massage treatment consists of a "corporate massage" as defined in Section 9.06.020(A). A record of every such referral shall be obtained and kept by the massage therapist rendering the service for a period of one year from the date of referral. Such record shall show the full legal name and street address of the doctor or chiropractor, the date, and any prescription number. Massage therapists providing outcall massage must comply with all provisions of this chapter. (4) Transfer of massage establishment license, massage therapist permit, managing employee permit. No permit issued pursuant to this chapter shall be transferred or assigned in any matter, whether by authorization of law or otherwise, from any location to location or from person to person, except that a person possessing a bmassage therapist permit, issued by the City, shall be able to move from one employer to another without filing a new application or paying a new fee, so long as the permit holder notifies the City Manager or his/her designee, in writing, of the change in his/her employment within five (5) days of such change. Failure to make this notification within five (5) days shall be grounds for suspension, revocation, or denial of the permit. 9.06.200 Suspension or revocation--Grounds. Any license or permit issued under this chapter may be suspended or revoked by the City Manager for any reason, which would justify the refusal to grant a license or permit originally. (Ord. 1643 (part), 1994; Ord. 1606 § 18, 1992) 9.06.210 Suspension or revocation Notice~Hearing. The holder of the license or permit shall be given prompt notice of revocation or suspension of the license or permit and shall immediately desist from engaging in the activity. The notice shall fix a time and place, not less than five or more than 35 thirty days after service thereofi at which time the holder of the license or permit may appear before the City Manager and be granted a hearing upon the merits of such suspension or revocation. If after such hearing the license or permit is ordered revoked, the holder shall have the right to appeal such action to the City Council in accordance with Section ~ 9.06.220 of this chapter. (Ord. 1643 (part), 1994; Ord. 1606 § 19, 1992) 9.06.220 Appeals. Any person whose license or permit has been denied, suspended or revoked may appeal the administrative decision of the City Manager, or designated representative, by filing a written notice of appeal with the City Clerk within five working days after receipt of notice of the decision. Such appeal shall be heard by the City Council, which may afftrm, amend or reverse the order, or take other action deemed appropriate. The Clerk shall give written notice of the time and place of the hearing to the appellant and any other person requesting notice. In conducting the hearing, the City Council shall not be limited by the technical roles of evidence. Any person requesting an appeal shall pay a nonrefundable fee set forth in the City fee schedule at the time of filing the appeal. (Ord. 1643 (part), 1994; Ord. 1606 § 20, 1992) o ag *an r~o-~ ....* .... ~+ ~ ......(Renumbered to Section 9.06.193(b) 9~,240 9.06.230 (Renumbered) Inspection by officials~Premises. Any and all investigating officials of the City of Cupertino shall have the fight to enter massage establishments from time to time during regular business hours to make reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing or health regulations, and to ascertain compliance with the provisions of this chapter. A warrant shall be obtained whenever required by law. (Ord. 1712 (part), 1995; Ord. 1643 (part), 1994) o n~*a{ · ..... ~ by ~en~;o~o D .... a, (Renumbered to Section 9.06.193(h)) 36 ........a ~ ~ 9.0.6 240 (~'Renumbered~ Violation--Public nuisance Violations of any provisions of this chapter constitutes a public nuisance which may be abated pursuant to Chapter 1.09 of the Cupertino Municipal Code. (Ord. 1643 (part), 1994; Ord. 1606 § 23, 1992) .-9,06,g60 9.06.250 (Renumbered) Violation--Penalty. Any person who violates the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Chapter 1.12 of the Cupertino Municipal Code. (Ord. 1712 (part), 1995: Ord. 1643 (part), 1994; Ord. 1606 § 22, 1992) ~ 9.06.260 (Renumbered) Continuing violations--Alternative remedies. Nothing in this chapter shall be deemed to prevent the City Council fi:om directing the City Attorney to commence civil action to enjoin the continued violation of any provisions of this chapter or to abate a nuisance, as an alternative, or in conjunction with any other civil or criminal proceedings provided for herein. (Ord. 1643 (part), 1994; Ord. 1606 § 24, 1992) !gOg2-7-$ 9.06.270 (Renumbered) Application to existing massage establishments and massage therapist. The provisions of this chapter shall become applicable to massage establishments and persons engaged in the practice of massage which lawfully existed prior to the effective date of the ordinance codified in this chapter. In order to comply with this chapter, each owner of a massage establishment shall comply with the provisions of this chapter within t-hS-"t-y sixty (60) days of the adoption, and each massage therapist must comply within ninety (90) days of adoption. (Ord. 1712 (part), 1995) 37 FATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) CITY OF CUPERTINO ) I, KIMBERLY SMITH, City Clerk and ex-officio Clerk of the City Council of the City of Cupertino, California, do hereby certify the attached to be a true and correct copy of Ordinance No. I ~>7 5~ , which '/ was enacted on 0~r~ ~Z/ 2 001 , and that it ha,, been published or posted pursuant to law (G.C. 40806). IN WITNESS WHEREOF, I have hereunto set my hand and seal this ~ ~5- day of ~l-tffr, [ ,200_[. KIMBE~Y SMI~, ~ity Clerk and Ex-officio Clerk of the City Council of the City of Cupertino, California ordinance certificate